On March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued initial guidance on the Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18, 2020. (For more information, see our prior Alert on the requirements of FFCRA.) The WHD’s guidance indicates that regulations are also forthcoming in April, but these regulations likely will not be issued before FFCRA takes effect.

FFCRA Goes into Effect April 1, 2020

The WHD’s guidance is in the form of three separate documents: a Fact Sheet for Employees , a Fact Sheet for Employers and a Questions and Answers document. The guidance clarifies that FFCRA applies to employee leave taken between April 1, 2020 (not April 2, 2020) and December 31, 2020. The WHD’s guidance also makes clear that FFCRA does not address employee leave taken prior to April 1, 2020, providing:

• Employers cannot deny employee paid sick leave under the FFCRA, even if the employer already provided paid leave prior to April 1, 2020; and
• Paid FMLA and sick leave benefits are not retroactive (meaning FFCRA’s benefits will not be applied to employee absences or additional paid leave benefits provided by an employer prior to April 1, 2020).

FFCRA Will Not Be Enforced Until April 17, 2020

On March 25, 2020, the WHD also separately issued a Field Assistance Bulletin, indicating that it will not bring enforcement actions against any employer through April 17, 2020, so long as employers make reasonable, good faith efforts to comply with FFCRA. An employer makes reasonable, good faith efforts when it: (1) remedies any violations, including by making affected employees whole as soon as practicable; (2) does not have willful violations (i.e., the employer did not know or show reckless disregard for whether its conduct was prohibited); and (3) provides written commitment to comply with FFCRA in the future.

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